Geeta RaniW/o. Chellappan v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17-08-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MRS. JUSTICE R. BANUMATHIHABEAS CORPUS PETITION NO.141 OF 2007Geeta RaniW/o. Chellappan.. PetitionerVs.1. State of Tamil Nadu, rep. by the Secretary to Govt., Public Department, Fort St. George, Chennai 600 009.2. Union of India, rep. by Secretary, Ministry of Finance, Department of Revenue, Janpath Bhavan, New Delhi.3. The Superintendent, Central Prison, Puzhal,Chennai... RespondentsPetition filed under Article 226 of the Constitution of India for theissuance of writ of Habeas Corpus calling for the records of the firstrespondent in GO.No.SRI/1061-3/2006 dated 20.12.2006 quash the same anddirect the respondents to produce the body of the detenu ChellappanManivannan S/o. Palanisamy Chellappan before this Court, normal residentof Flat D-II Floor 56, Giri Road, T.Nagar, Chennai 17, presentlyundergoing detention under the provisions of Conservation of ForeignExchange & Prevention of Smuggling Activities Act in Central Prison,Chennai and set him at liberty.For Petitioner: Mr.B. Kumar Senior Counsel for Mr.S. RamachandranFor Respondents 1&3: Mr.M. Babu Muthu Meeran Addl. Public Prosecutor Respondent-2: Mr.P. Kumaresan, ACGSC https://hcservices.ecourts.gov.in/hcservices/ O R D E RP.K. MISRA, JThe wife of the detenu has filed this Habeas Corpus Petition forquashing the order of prevention dated 20.12.2006, which has been passedby the State of Tamil Nadu with a view to prevent the detenu fromsmuggling of goods in future. Such order has been passed in exercise ofpower conferred under Section 3(1)(i) of the Conservation of ForeignExchange & Prevention of Smuggling Activities Act, 1974 (Central Act 52 of1974), hereinafter referred to as "the COFEPOSA Act".2. From the grounds of detention it appears that on 13.11.2006,the detenu after having completed check-in, immigration, customs andsecurity formalities, was within the security lounge area of AnnaInternational Airport, Chennai and was intercepted and questioned by theIntelligence Officer attached to Air Intelligence Unit of the Customsregarding the contents of the detenu's baggage. The detenu stated that hewas carrying Rs.4 lakhs of Indian currency. The officer took the detenuand his baggage to the Air Intelligence Unit room and the detenu wasquestioned in presence of two independent witnesses. The detenu repliedthat he was carrying Rs.5 lakhs in hand baggage and Rs.2 lakhs in checked-in baggage. Examination of olive green 'Hush Puppies' stroller bagbearing Srilankan Airlines Baggage Tag No.UL278401 resulted in recovery ofRs.9 lakhs of Indian currency. Examination of hand baggage consisting ofone black 'Blazer club' zipper bag resulted in recovery of Rs.5,00,000/-.It is further stated in the grounds of detention that the detenu,"attempted to smuggle Rupees fourteen lakhs of Indiancurrency out of India by not declaring that you were inpossession of the same before Customs inspite of beingfacilitated with an export endorsement/certificate for yourprinter part mentioned above, and also as you subsequentlymisdeclared the currency in your possession as Rs.7,00,000/-only, and further, as you did not have any permit/exemption fromthe Reserve Bank of India for the export of the currency, theIndian currency of Rs.14,00,000 attempted to be taken out of thecountry by you was seized by the said officer under the mahazarin the presence of the two independent witnesses and and in yourpresence for action under Customs Act 1962 read with ForeignExchange Management Act, 1999."On 14.11.2006, the voluntary statement of the detenu was recorded,wherein the detenu inter alia stated that he had proceeded to the securitylounge after completing the security formalities and that he was takingold machineries for repair and he would have earned some profit byexchanging foreign currencies.In the grounds of detention it is further stated :-"(iii) You have attempted to smuggle the Indian currenciesamounting to Rupees Fourteen Lakhs by way of non-declaration toCustoms and subsequently mis-declaration to Customs on enquiry,in violation of Section 77 of the Customs Act, 1962, read withthe provisions of the Foreign Exchange Management Act, 1999. You https://hcservices.ecourts.gov.in/hcservices/ have rendered the goods liable to confiscation under theprovisions of Section 113(d), and 113(h) of the Customs Act, 1962read with the Foreign Exchange Management Act, 1999. You havealso rendered yourself for penal action under Section 114 of theCustoms Act, 1962.(iv) You were arrested by the Preventing Officer on14.11.2006 under Section 104 of the Customs Act, 1962 as therewas reason to believe that you were guilty of an offencepunishable under Section 132 and Section 135 of the Customs Act,1962 read with FEMA, 1999. You were produced before theHonourable Additional Chief Metropolitan Magistrate, EconomicOffences Court, Egmore on 15.11.2006 and you were remanded tojudicial custody till 29.11.2006. Your remand was periodically extended till 13.12.2006 and 22.12.2006....(ix) you had sent a representation dated 17.11.2006 to theHonourable Additional Chief Metropolitan Magistrate (E.O.II),Egmore Court, Chennai with copies to Chief Commissioner ofCustoms, Custom House, Chennai and others, wherein you had statedinter alia that while completing your checked-in and immigrationformalities you approached a Customs Officer for declaration ofIndian money; that you were taken to the AIU room and force tosign a dictated statement; that you have not seen the witnesses;that you were detained till 15.11.2006 and that you could nottell your grievances to the Magistrate due to threat. The JointCommissioner of Customs (AIR), in his reply dated 22.11.2006 andthe Addl. Commissioner of Customs (CCO), in his reply dated28.11.2006 have stated inter alia that the endorsement in theBoarding Pass by the CISF authorities would confirm the fact thatyou were intercepted only at the Security Lounge Area after thesecurity formalities; that the voluntary statement was given byyou in your own handwriting and contained personal and familydetails, which are only known to you; that your contentions aboutpre-assigned statement from you are baseless and not based onfacts and that your retraction deserves to be rejected. TheJoint Commissioner of Customs (AIR), issued a corrigendum to hisletter dated 22.11.2006 stating that due to the typographicalerror, one line in sub para (1) of para 2 line 1 has been leftout and hence, in the sub para (1) of para 2 of the said lettermay be read as "You were intercepted in the Security Lounge Areaof the Departure Hall in 1st floor of the Anna InternationalAirport after completion of your check-in, Immigration, Customsand Security formalities, and were noticed to be very nervous atthe Security Lounge Area. ..." The Government have taken intoconsideration the averments/contentions contained in therepresentation and the replies given by the sponsoring authority.From the above material, the Government are satisfied that yourcontentions are baseless, devoid of merit and hence theGovernment reject the same." https://hcservices.ecourts.gov.in/hcservices/

3. On 14.11.2001, the detenu was arrested and remanded tojudicial custody. It was asserted in the Habeas Corpus Petition that thedetenu was released on 15.12.2006 and he retracted his statement on17.12.2006 and thereafter the order of detention was passed on 20.12.2006.Copy of the grounds of detention was served on 23.12.2006. It is statedthat on 5.2.2007, a representation was sent on behalf of the detenu askingfor certain details including the provision of law for violation of whichhe was detained. On 17.2.2007, a reply was given without giving therequired details.4. Copy of the representation made by the present petitioner,wife of the detenu, on 5.2.2007 is available on record. In suchrepresentation, inter alia it was stated :-"(b) Secondly it is mentioned that my husband has notviolated Customs Act r/w.FEMA 1999. He is unable to find anyprovision under FEMA 1999 which any way prohibits taking foreigncurrencies out of India. Therefore it is requested the exactprovisions of FEMA, the Section of FEMA may be intimated to myhusband, to enable him t send a proper reply."5. Regarding the above aspect, a specific ground has been takenin para 12 of the affidavit filed in support of the Habeas Corpus Petitionstating that there was no reply to such a request made in therepresentation. In the counter affidavit filed by the State Government,as reply to the aforesaid contention, it has been stated :-"11. As far as the averments made in paragraph 12 of theaffidavit are concerned, I submit that goods are liable forconfiscation under Section 113(d)(e) and (h) of the Customs Act,1962. The detenu has violated section 3(1)(a) of the ForeignExchange Management (Export and Import of Currency) Regulations,2000 which reads "any person resident in India may take outsideIndia currency notes upto an amount not exceeding Rs.5,000/- perperson". As per this he has carried the Indian currency againstthe eligible amount. Further, section 5 of the Foreign ExchangeManagement (Export and Import of Currency)Regulations, 2000prohibits export of foreign currency without the general orspecial permission of Reserve Bank of India. Further the detenuwhen questioned whether he has any licit documents or approvalfrom Reserve Bank of India for carrying those Indian currenciesamounting to Rs.14 lakhs, he failed to produce any licitdocuments or permit or exemption from the Reserve Bank of Indiafor export of the currency out of India. Thus the contentionraised are not acceptable as per law in force."6. Learned Senior Counsel appearing for the petitioner hassubmitted that it is apparent from the grounds of detention, particularlyparagraph (iv), that the detenu was arrested for the alleged commission ofoffence punishable under Sections 132 and 135 of the Customs Act, 1962read with Foreign Exchange Management Act, 1999 (hereinafter referred toas "FEMA"). In spite of specific request being made to furnish details to https://hcservices.ecourts.gov.in/hcservices/ the specific provisions, which have been violated, the State Government,while rejecting the representation, had not furnished any details and forthe first time only in the counter affidavit filed in the Habeas Corpuspetition, it is disclosed that the goods are liable to confiscation underSection 113(d) and (h) of the Customs Act and the detenu has violatedSection 3(1)(a) of the Foreign Exchange Management (Export and Import ofCurrency)Regulations, 2000 and it is further stated that Section 5 of suchRegulations prohibits export of foreign currency without the general orspecial permission of Reserve Bank of India. According to the SeniorCounsel, by not furnishing the specific details required, the detenu hasbeen obviously deprived of an opportunity of making an effectiverepresentation at the earliest and moreover the fact that representationwas simply rejected without giving the required details indicates that therepresentation has not been dealt with in a cavalier fashion and not withthe seriousness required.7. In our considered opinion, the contention of the learnedSenior Counsel that the detenu has been prejudiced and has been preventedfrom making an effective representation on account of non-furnishing ofspecific provision, which had been allegedly violated by the detenu, isacceptable. 8. As a matter of fact, a Division Bench decision of Madras HighCourt reported in 1990 L.W.Crl.242 (LIYAKAT ALI v. K.L. VERMA, JOINTSECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE), appears to beapplicable in full force to the facts of the present case. Relevantportions of the said decision are extracted hereunder :-"3. The main ground urged before us is that the petitionerin his representation dated 30-3-1988, wanted to be enlightenedas to what was the section of the Foreign Exchange RegulationAct, which he was found to have violated. The order rejectinghis representation viz., order dated 26-4-1988, does not giveany reply to his query.4. Learned counsel for the respondent would contend that theremand report, which was one of the documents furnished to thedetenu along with the grounds of detention, mentioned the sectionas Sec.9(1)(b) of the Act....6. There is some force in the contentions putforth by thelearned counsel for the petitioner. No doubt, the detentionorder would not be made invalid for the mere absence of mentionof the section. But, when the detenu has made a specific requestto have that section to be made known to him, that request shouldhave been acceded to, and the failure to do so vitiates theorder."9. We are conscious of the juristic principle that ignorance oflaw is not a valid excuse. However, in the present case, there was ageneric reference to the alleged violation of the provisions contained inSections 132 and 135 of the Customs Act read with FEMA. Specific replygiven in the counter is regarding the alleged violation of some of theprovisions contained in the Foreign Exchange Management (Export and Importof Currency)Regulations, 2000. Even assuming that lack of reference in https://hcservices.ecourts.gov.in/hcservices/ the grounds of detention to the specific provisions contained in theRegulations now relied upon in the counter for the first time did not havethe effect of vitiating the subject satisfaction, it can be at leastconcluded that by not clarifying the matter by referring to the provisionscontained in the Foreign Exchange Management (Export and Import ofCurrency)Regulations, 2000, (now relied upon in the counter), obviouslyprejudiced the detenu as he was denied of the opportunity of making aneffective representation. 10. It has been laid down in several decisions of the SupremeCourt as well as of the Madras High Court including the decisions reportedin (2006) 2 M.L.J (Crl.) 487 (KHATHIJA BEEVI v. STATE OF TAMIL NADU ANDANOTHER) , (2006) 2 M.L.J (Crl.) 492 (PEER MOHAMMED v. STATE OF TAMIL NADUAND ANOTHER) and (2006) 2 M.L.J (Crl.) 131 (MOHIADEEN SAHIB, P.M.S. v.STATE OF TAMIL NADU) emphasising the necessity of bestowing seriousattention to the contentions or requests made in a representation. When aspecific request was made for furnishing the details of the specificprovisions which had been violated, it was the duty of the concernedofficer at least at that stage to furnish such particulars to enable thedetenu to take such further recourse as would be deemed proper by suchdetenu. The non furnishing of such details or particulars has the effectof vitiating the order of detention.11. From the grounds of detention it is apparent that detenu wasintercepted within the security lounge obviously after other formalitiesincluding customs clearance were over. Learned Senior Counsel hastherefore contended that endorsement on the Boarding Pass made by the CISFauthorities, which would have categorically fortified such conclusion,should have been supplied to the detenu. In this connection, he hasspecifically invited our attention to paragraph No.4 of the affidavitwhere it is stated:-"4) The Detention order is also violative of Art.22(5) inthat, certain important documents, have not been supplied alongwith the grounds. In the grounds it is mentioned that the detenuhad one hand baggage. He cleared the security check with the saidhand bag and was in the sterile lounge awarding the boarding.This feature is mentioned in the grounds to show that the detenudeliberately chosen not to disclose the Indian currencies andevade the screening. Any passenger who had handbag with him mustscreen and have it x-rayed and he himself frisked before he iscleared the goods into the lounge. As a token x-ray and friskingthe luggage Tag which will be mandatorily tied into the Hand bagwill have to be stamped by the Security personnel. Stamping ofluggage Tag with the Hand Bag is the only proof of securityclearance for Hand bag. Therefore this Luggage Tag with SecurityStamp dt. 13.11.2006 ought to have been supplied along with thegrounds. The failure in this regard is violative of Article 22(5). The Detaining authority if it has not seen and perused thisLuggage Tag with the Security Stamp, it would also amount to non-application of mind. In any view, continued detention of thedetenu would be unsustainable. This has to be viewed in thecontext of the plea of the Detenu from the beginning that he wasintercepted with before any of the screening and that he did https://hcservices.ecourts.gov.in/hcservices/ declare the Indian currencies and that he did not know that hecould not take it with him."12. In the representation dated 5.2.2007, it was alsospecifically stated :-"The grounds proceed on the basis that my husband wasintervened after security check and that the Indian currencieswere found in the hand baggage which was carried by him. If so,the hand baggage must have a Tag and Tag must have a securitystamp. Only with this Security Stamp a person will be able totake the baggage inside the Security Hall where the passengers gobefore boarding the Aircraft. Such Tag is not supplied is agross violation. It is necessary to supply the same along withsecurity stamp if any."13. Such representation was rejected on 17.2.2007, wherein it wasobserved that all the relied upon documents for passing the detentionorder had already been supplied. It was further stated in para 3 that ashis request for supply of baggage tag along with security stamp was notseized, the question of supplying the same does not arise.14. In the above context, learned Senior Counsel has specificallyinvited our attention to the xerox copy of the Boarding Pass available atPage No.22 of the Booklet supplied to the detenu, which does not appear tocontain any security endorsement. Even when a specific ground has beentaken, the respondents have not been able to produce the original BoardingPass which could have shown whether there was any endorsement of securityclearance on the obverse side of the Boarding Pass or even in the front.It is the specific case of the detaining authority that the detenu wasfound in the Security lounge after clearing other formalities. In spite ofspecific assertion in representation and affidavit, non-production of anydocumentary material to indicate that the person had gone to Securitylounge after clearing the security, which could have been best proved byshowing the endorsement relating to security clearance in the BoardingPass, raises a genuine doubt in the mind. At any rate it was the duty ofthe detaining authority to seek for clarification at that stage and it wasalso the duty to produce sufficient materials before this Court to dispelsuch doubt. Similarly, the reply that baggage tag had not been seized isnot convincing as it discloses lack of application of mind on the part ofthe detaining authority to a very vital fact. In this connection, it hasto be particularly noticed that in para (ix) of the grounds of detentionit was stated: "The Joint Commissioner of Customs (AIR), in his replydated 22.11.2006 and the Addl. Commissioner of Customs (CCO), inhis reply dated 28.11.2006 have stated inter alia that theendorsement in the Boarding Pass by the CISF authorities wouldconfirm the fact that you were intercepted only at the SecurityLounge Area after the security formalities;"15. This aspect also assumes more significance in view of thespecific representation dated 17.11.2006 made by the detenu himself. Ithas been specifically stated by the detenu that while completing check-in https://hcservices.ecourts.gov.in/hcservices/ and immigration formalities the detenu had approached the Custom Officerfor declaration of Indian money and was taken to Air Intelligence Unitroom and he was forced to sign in a dictated statement. It is axiomaticthat a person can enter into the security lounge only after he wassearched by the security personnel. Moreover, when in the reply it wasspecifically stated that there was endorsement in the Boarding Pass,obviously it was the duty of the detaining authority to furnish materialsin support of such contention along with the grounds of detention andparticularly when a specific representation had been made. In view of theabove, the detention is also liable to be quashed.16. Learned Senior counsel for the petitioner has also contendedthat even as per the admitted case of the Department, the detenu haddeclared that he was carrying Rs.7 lakhs, but in the grounds of detentionthe Department seems to have proceeded on the assumption that the detenuwas carrying Rs.14 lakhs without declaring the same. According to thepetitioner, the fact that the detenu had declared Rs.7 lakhs was a vitalaspect to which there has been non-application of mind. Since we are ofthe opinion that the order of detention is liable to be quashed in view ofthe other vital infirmities already noticed, it is not necessary to delveinto this question, though prima facie such contention may appear to bejustified. Similarly, it is not necessary to deal with the contentionthat the grounds of detention appears to be verbatim copy of the mahazar,indicative of non-application of mind.17. For the aforesaid reasons, the order of detention is setaside and the detenu is set at liberty forthwith unless his presence isrequired in any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dpkTo1. The Secretary to Govt., Public Department, Fort St. George, Chennai 600 009.2. The Secretary, Ministry of Finance, Department of Revenue,Union of India, Janpath Bhavan, New Delhi.3. The Superintendent, Central Prison, Puzhal,Chennai. https://hcservices.ecourts.gov.in/hcservices/

4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government,Public (SC) Department,Fort St.George, Chennai – 9.HCP.NO.141/2007 VRK(CO)RVL 22.08.2007